An open ended "use of force" resolution is not a congressional declaration of war, no matter how many times you say it.
You are attempting to rewrite history and you're doing it in the wrong place. People around here have a better memory than most of the sheeple, and we're going to call every history revision we see. You would do well to remember that.
There are an incredible number of nit-pickers out there. Just as Leftists scream “bigotry, discrimination, racism, homophobia, profiling, etc. etc, etc.” at the attempts to defend ourselves and our way of life, Libertarians scream “unconstitutional” at anything they don’t like.
My copy of the Constitution is at my right hand and is printed in a booklet about 3” by 5” by ¼” thick. As a practical shield against a bomber, it’s about as useful as my shirt, yet the fools who argue about the issue of whether every “i” is dotted and “t” crossed seem to believe that this little booklet is my ultimate defense against the people who are willing to give their own lives to kill us.
The real problem is that these people really don’t believe we are in a war to the death. That’s not surprising. Few Americans of this generation have seen war or have had their countries invaded. So they are all armchair Generals and bloviating Constitutional Lawyers. According to these sophists 3,000 dead Americans is too bad, but nothing compared to fighting a war without a formal and official act of Congress with the heading “Declaration of War.” By God, 3,000 Americans may be killed, our troops may be in harm’s way, the Arabs may be assembling a “dirty bomb” and anthrax may be in the mail, but we are not going to fight until the paperwork is done to their satisfaction. These are their priorities.
They are the burden of the Right.
Main Index: Cases and Codes: U.S. Constitution: Article I
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Clauses 11, 12, 13, and 14. War; Military Establishment
Three Theories.--Three different views regarding the source of the war power found expression in the early years of the Constitution and continued to vie for supremacy for nearly a century and a half. Writing in The Federalist,1397 Hamilton elaborated the theory that the war power is an aggregate of the particular powers granted by Article I, Sec. 8. Not many years later, in 1795, the argument was advanced that the war power of the National Government is an attribute of sovereignty and hence not dependent upon the affirmative grants of the written Constitution.1398 Chief Justice Marshall appears to have taken a still different view, namely that the power to wage war is implied from the power to declare it. In McCulloch v. Maryland,1399 he listed the power ''to declare and conduct a war''1400 as one of the ''enumerated powers'' from which the authority to charter the Bank of the United States was deduced. During the era of the Civil War, the two latter theories were both given countenance by the Supreme Court. Speaking for four Justices in Ex parte Milligan, Chief Justice Chase described the power to declare war as ''necessarily'' extending ''to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and conduct of campaigns.''1401 In another case, adopting the terminology used by Lincoln in his Message to Congress on July 4, 1861,1402 the Court referred to ''the war power'' as a single unified power.1403
An Inherent Power.--Thereafter, we find the phrase, ''the war power,'' being used by both Chief Justice White1404 and Chief Justice Hughes,1405 the former declaring the power to be ''complete and undivided.''1406 Not until 1936, however, did the Court explain the logical basis for imputing such an inherent power to the Federal Government. In United States v. Curtis-Wright Corp.,1407 the reasons for this conclusion were stated by Justice Sutherland as follows: ''As a result of the separation from Great Britain by the colonies acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America. Even before the Declaration, the colonies were a unit in foreign affairs, acting through a common agency--namely, the Con tinental Congress, composed of delegates from the thirteen colonies. That agency exercised the powers of war and peace, raised an army, created a navy, and finally adopted the Declaration of Independence. . . . It results that the investment of the Federal Government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. The power to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereignties, if they had never been mentioned in the Constitution, would have vested in the Federal Government as necessary concomitants of nationality.''1408
A Complexus of Granted Powers.--In Lichter v. United States,1409 on the other hand, the Court speaks of the ''war powers'' of Congress. Upholding the Renegotiation Act, it declared that: ''In view of this power 'To raise and support Armies, . . . and the power granted in the same Article of the Constitution 'to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers,' . . . the only question remaining is whether the Renegotiation Act was a law 'necessary and proper for carrying into Execution' the war powers of Congress and especially its power to support armies.''1410 In a footnote, it listed the Preamble, the necessary and proper clause, the provisions authorizing Congress to lay taxes and provide for the common defense, to declare war, and to provide and maintain a navy, together with the clause designating the President as Commander-in-Chief of the Army and Navy, as being ''among the many other provisions implementing the Congress and the President with powers to meet the varied demands of war. . . .''1411
In the early draft of the Constitution presented to the Convention by its Committee of Detail, Congress was empowered ''to make war.''1412 Although there were solitary suggestions that the power should better be vested in the President alone,1413 in the Senate alone,1414 or in the President and the Senate,1415 the sentiment of the Convention, as best we can determine from the limited notes of the proceedings, was that the potentially momentous consequences of initiating armed hostilities should be called up only by the concurrence of the President and both Houses of Congress.1416 In contrast to the English system, the Framers did not want the wealth and blood of the Nation committed by the decision of a single individual;1417 in contrast to the Articles of Confederation, they did not wish to forego entirely the advantages of executive efficiency nor to entrust the matter solely to a branch so close to popular passions.1418
The result of these conflicting considerations was that the Convention amended the clause so as to give Congress the power to ''declare war.''1419 Although this change could be read to give Congress the mere formal function of recognizing a state of hostilities, in the context of the Convention proceedings it appears more likely the change was intended to insure that the President was empowered to repel sudden attacks1420 without awaiting congressional action and to make clear that the conduct of war was vested exclusively in the President.1421
An early controversy revolved about the issue of the President's powers and the necessity of congressional action when hostilities are initiated against us rather than the Nation instituting armed conflict. The Bey of Tripoli, in the course of attempting to extort payment for not molesting United States shipping, declared war upon the United States, and a debate began whether Congress had to enact a formal declaration of war to create a legal status of war. President Jefferson sent a squadron of frigates to the Mediterranean to protect our ships but limited its mission to defense in the narrowest sense of the term. Attacked by a Tripolitan cruiser, one of the frigates subdued it, disarmed it, and, pursuant to instructions, released it. Jefferson in a message to Congress announced his actions as in compliance with constitutional limitations on his authority in the absence of a declaration of war.1422 Hamilton espoused a different interpretation, contending that the Constitution vested in Congress the power to initiate war but that when another nation made war upon the United States we were already in a state of war and no declaration by Congress was needed.1423 Congress thereafter enacted a statute authorizing the President to instruct the commanders of armed vessels of the United States to seize all vessels and goods of the Bey of Tripoli ''and also to cause to be done all such other acts of precaution or hostility as the state of war will justify . . .''1424 But no formal declaration of war was passed, Congress apparently accepting Hamilton's view.1425
Sixty years later, the Supreme Court sustained the blockade of the Southern ports instituted by Lincoln in April 1861 at a time when Congress was not in session.1426 Congress had subsequently ratified Lincoln's action,1427 so that it was unnecessary for the Court to consider the constitutional basis of the President's action in the absence of congressional authorization, but the Court nonetheless approved, five-to-four, the blockade order as an exercise of Presidential power alone, on the ground that a state of war was a fact. ''The President was bound to meet it in the shape it presented itself, without waiting for Congress to baptize it with a name; and no name given to it by him or them could change the fact.''1428 The minority challenged this doctrine on the ground that while the President could unquestionably adopt such measures as the laws permitted for the enforcement of order against insurgency, Congress alone could stamp an insurrection with the character of war and thereby authorize the legal consequences ensuing from a state of war.1429
The view of the majority was proclaimed by a unanimous Court a few years later when it became necessary to ascertain the exact dates on which the war began and ended. The Court, the Chief Justice said, must ''refer to some public act of the political departments of the government to fix the dates; and, for obvious reasons, those of the executive department, which may be, and, in fact, was, at the commencement of hostilities, obliged to act during the recess of Congress, must be taken. The proclamation of intended blockade by the President may therefore be assumed as marking the first of these dates, and the proclamation that the war had closed, as marking the second.''1430
These cases settled the issue whether a state of war could exist without formal declaration by Congress. When hostile action is taken against the Nation, or against its citizens or commerce, the appropriate response by order of the President may be resort to force. But the issue so much a source of controversy in the era of the Cold War and so divisive politically in the context of United States involvement in the Vietnamese War has been whether the President is empowered to commit troops abroad to further national interests in the absence of a declaration of war or specific congressional authorization short of such a declaration.1431 The Supreme Court studiously refused to consider the issue in any of the forms in which it was presented,1432 and the lower courts gen erally refused, on ''political question'' grounds, to adjudicate the matter.1433 In the absence of judicial elucidation, the Congress and the President have been required to accommodate themselves in the controversy to accept from each other less than each has been willing to accept but more than either has been willing to grant.1434
The Resolution is purposely ambiguous. It grants permission for the President to do whatever he wants to do if he simply says it is related to 911. Yet Congress intentionally did NOT declare war on anybody. They could have used the verbiage if they had chosen to do so, but they did not.
If Congress had intended to be upfront, clear, honest, and unambiguous, they would have declared war instead of granting carte blanche to the CiC.
In your reasoning, we have been at war since LBJ declared War on Poverty in the 1960's. Congress has certainly passed numerous laws and resolutions to fund and support a WoP, and we have not declared victory.
Why couldn't Congress just simply declare war?December 8, 1941 JOINT RESOLUTION Declaring that a state of war exists between the Imperial Government of Japan and the Government and the people of the United States and making provisions to prosecute the same.
Whereas the Imperial Government of Japan has committed unprovoked acts of war against the Government and the people of the United States of America: Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial Government of Japan; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States.
After all, it was the acting Taliban government of Afghanistan that we attacked. If you want to use the Barbary Pirate example in support of our actions, then we should have limited our attacks specifically to terrorist locations. Instead, Bush used this as an opportunity to take out the Taliban and engage in "nation building," something he said he wouldn't do.Sptember 12, 2001 JOINT RESOLUTION Declaring that a state of war exists between the terrorist government of Afghanistan and the Government and the people of the United States and making provisions to prosecute the same.
Whereas the terrorist government of Afghanistan has committed unprovoked acts of war against the Government and the people of the United States of America: Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of war between the United States and the terrorist government of Afghanistan which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the terrorist government of Afghanistan; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States.
If you believe, as Bush does, that any government harboring terrorists is just as culpable, then why not support a declaration of war on those nations and be done with it? It's not that hard for Congress to do.
. . . thought it reads more like a 'Writ of Attorney' that any declaration. . .
1941 US Congress
Declaration of War on Japan
JOINT RESOLUTION
Declaring that a state of war exists between the Imperial Government of Japan and the Government and the people of the United States and making provisions to prosecute the same.
Whereas the Imperial Government of Japan has committed unprovoked acts of war against the Government and the people of the United States of America: Therefore be itResolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on was against the Imperial Government of Japan; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States.
Approved, December 8, 1941, 4:10 p.m. E.S.T.